Opinion
DOCKET NO. A-5788-12T4
01-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSUE VEGA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-06-9071. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
On June 17, 2010, defendant was indicted for first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second degree sexual assault, N.J.S.A. 2C:14-2(b); second degree sexual assault, N.J.S.A. 2C:14-2(c); third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
On October 8, 2010, defendant pled guilty to second degree sexual assault, N.J.S.A. 2C:14-2(c), and on March 3, 2011, was sentenced to a flat, seven-year term. He did not file a direct appeal from his conviction or sentence.
On May 8, 2012, defendant filed a pro se PCR petition in which he alleged that trial counsel failed to: (1) inform him of the consequences of his guilty plea; (2) investigate his case; (3) file a pretrial motion to dismiss the indictment; and (4) pursue an "aggressive and cogent defense . . . and give his client the concentration and attention [defendant's] case deserved." Defendant did not provide any details or facts in support of these allegations.
A brief was subsequently submitted by assigned counsel on behalf of defendant. The brief claimed trial counsel "barely met with [defendant] and when he did all communication pointed to a quick plea." There was no certification submitted by defendant substantiating these claims in the record. Defendant also contended counsel failed to file a motion "to challenge the statements made by [defendant]." The brief did not specify the statements defendant made or the issue that should have been raised in a motion. Finally, defendant contended he requested but his trial counsel failed to file an appeal. Defendant did not indicate what issues were to be appealed.
During oral argument before the PCR court, defendant's attorney was unable to identify any errors trial counsel made or any issue that should have been appealed. It was also noted that trial counsel had in fact filed a motion to suppress defendant's statements, but he then decided to accept the State's plea offer. On May 30, 2013, the PCR court denied defendant's petition, finding he "did not explain why or how counsel's actions [were] in any way deficient."
Defendant raised the following point for our consideration.
POINT I - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
We disagree and affirm.
"A petitioner must establish the right to [PCR] by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992) (citations omitted). Merely raising a PCR claim does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999).
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which we adopted in State v. Fritz, 105 N.J. 42, 58 (1987)." Preciose, supra, 129 N.J. at 463. A defendant must meet both prongs of this test, which are: (1) that counsel's performance was deficient and he made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
A modified Strickland standard applies when a defendant has entered a guilty plea:
When a guilty plea is part of the equation, . . . "a defendant must show that (i)
counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial."Moreover, under the second Strickland prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
Here, although defendant references some of the arguments he made in his petition and those PCR counsel advanced in his brief, defendant does not raise any of these arguments on appeal. Rather, he seeks to have his guilty plea vacated based upon the ineffective assistance of trial counsel. He provides no facts in support of this contention or even any theory setting forth how his attorney may have been ineffective. But even if he had, because this issue was not raised before the Law Division, we shall not consider it. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012).
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel. Accordingly, the PCR court correctly concluded that an evidentiary hearing was unnecessary and the dismissal of the petition warranted. See Preciose, supra, 129 N.J. at 462-63.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION